Merkle v. Review Bd. of Ind. Employment Sec. Division, 17937
| Decision Date | 27 February 1950 |
| Docket Number | No. 17937,17937 |
| Citation | 90 N.E.2d 524,120 Ind.App. 108 |
| Parties | MERKLE v. REVIEW BOARD OF INDIANA EMPLOYMENT SECURITY DIVISION et al. |
| Court | Indiana Appellate Court |
Elson & Cotton, Chicago, Illinois, Willard J. Lassers, Chicago, Illinois, Albert W. Ewbank, Indianapolis, for appellant.
John O. Campbell, Robert A. Gemmill, John R. Browne, Jr., J. Bertrand Ewer, Jerry W. Torrance, Jr., Marion, for Daly Bros. Shoe Co.
The appellant, a discharged employee of the appellee Daly Brothers Shoe Company, sought unemployment compensation under the provisions of the Indiana Employment Security Act. The Review Board found that she was a 'chronic absentee without notice and without permission' and decided that such facts constitute misconduct in connection with her work within the meaning of Burns' Stat., § 52-1539 (Supp.); that her discharge was therefore justified and she must suffer the disqualification imposed by the act. She appeals this decision on two grounds. First, she asserts that there is insufficient evidence to support the finding that she was a 'chronic absentee without notice and without permission' and second, that even if such finding were justified it does not constitute misconduct in connection with her work within the meaning of the law.
The statute involved is § 52-1539, supra, which reads as follows: 'An individual shall be ineligible for waiting period or benefit rights: For the week in which he has left work voluntarily without good cause or has been discharged for misconduct in connection with his work, and for the five (5) next following weeks, in addition to the waiting period; Provided, however, That if such individual receives dismissal wages covering a period of time subsequent to such week the disqualification shall become effective at the end of such period.'
Burns' Stat., § 52-1542k (Supp.), provides that: 'Any decision of the review board shall be conclusive and binding as to all questions of fact.' This means that we are not at liberty to weigh the evidence. We must accept the facts as found by the board and can disregard them only in the event they are not sustained by any evidence of probative value. White v. Review Board of Indiana, etc., 1944, 114 Ind.App. 383, 52 N.E.2d 500; News Publishing Co. v. Verweire, 1943, 113 Ind.App. 451, 49 N.E.2d 161; Craddock Furniture Corp. v. Nation, 1944, 115 Ind.App. 62, 54 N.E.2d 295, 55 N.E.2d 121. We deem a recital of evidence favorable to the board's decision unnecessary further than to say that the testimony of Leslie J. Elsen, personnel manager of the appellee Daly Brothers Shoe Company, who testified from time cards and other records of his company, amply sustains the finding that the appellant was a 'chronic absentee without notice and without permission.'
Whether or not an employee's chronic absenteeism without notice or permission amounts to misconduct in connection with his work has never been decided in Indiana. We quite agree with the appellant in...
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